Opinion
No. 1026 KA 21-00342
02-02-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MARK L. WILLIAMS, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND DELCONTE, JJ.
Appeal from a resentence of the Monroe County Court (Douglas A. Randall, J.), rendered October 22, 2019. Defendant was resentenced upon his conviction of robbery in the first degree and criminal possession of a weapon in the third degree.
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted in 2002 upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4]) and criminal possession of a weapon in the third degree (§ 265.02 [former (4)]), and County Court failed to impose a period of postrelease supervision (PRS) with respect to those counts as required by Penal Law § 70.45 (1). Defendant contends that, because he had served more than 17 years of his original 25-year sentence of imprisonment, the sentencing court violated his constitutional rights against double jeopardy and to due process by resentencing him pursuant to Correction Law § 601-d and pronouncing the relevant period of PRS. Even assuming, arguendo, that defendant's contentions do not require preservation (cf. People v Woods, 122 A.D.3d 1400, 1401 [4th Dept 2014], lv denied 25 N.Y.3d 1210 [2015]; People v Smikle, 112 A.D.3d 1357, 1358 [4th Dept 2013], lv denied 22 N.Y.3d 1141 [2014]; see generally People v Williams, 14 N.Y.3d 198, 220-221 [2010], cert denied 562 U.S. 947 [2010]), we nevertheless conclude that they lack merit.
Inasmuch as defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced," 'his resentencing to a term including the statutorily required period of postrelease supervision did not violate the double jeopardy or due process clauses of the United States Constitution'" (People v Drake, 126 A.D.3d 1382, 1383 [4th Dept 2015], lv denied 26 N.Y.3d 1144 [2016]; see People v Lingle, 16 N.Y.3d 621, 630-633 [2011]; People v Fox, 104 A.D.3d 789, 789-790 [2d Dept 2013], lv denied 21 N.Y.3d 943 [2013]; cf. Williams, 14 N.Y.3d at 217). Defendant's reliance on cases rejected by the Court of Appeals in Lingle is misplaced (see Lingle, 16 N.Y.3d at 632).